' AMIN-UD-DIN KHAN, J.--- This civil revision has been filed against the judgment and decree dated 20-1-2010, passed by the learned Additional District Judge, Kasur whereby the appeal filed by the respondent/plaintiff was accepted and the judgment and decree dated 5-9-2009, passed by the Civil Judge, Kasur, dismissing the suit of the respondent/plaintiff, was set aside.
2. Pie-admission notice was issued in this case on 10-2-2010. With the concurrence of the learned counsel for the parties it is being decided as a pacca' case.
3. Brief facts, of the case are that Mst. Muniri/respondent No, 1/plaintiff filed a suit on 8711-2002 for a declaration that she be declared the owner of the suit property, in addition to challenging gift Mutation No,7916, attested on 13-8-2002. In the suit she stated that she never gifted the suit property to the defendants. No offer, acceptance and delivery of possession had ever taken place.
Defendant No,1 filed contested written statement and defended the suit. Defendant No,2, in his written statement has admitted the story of the plaintiff with regard to affixation of her thumb- impression before the `patwarr on some papers and also admitted that no gift was made in favour of the defendants. The learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. The learned trial Court, vide judgment and decree dated 5-9-2009, was pleased to dismiss the suit. The appeal was preferred. The learned first appellate Court, vide judgment and decree dated 20-1-2010 accepted the appeal and decreed the suit. Hence, this civil revision.
4. Learned counsel for the petitioner/defendant No,1 states that a valid gift was made and by producing 'pattidar', 'patwari' and other witnesses, defendant proved the attestation of the gift mutation and it is admitted that defendants are in possession of the suit property. Further states that even the first appellate court has found that proper issues were not framed in this suit. He submits that it was incumbent upon the first appellate court to remand the case for fair trial after casting proper issues. He further submits that the deviation, if any, made by the revenue officials does not make the impugned mutation invalid.
5. On the other hand, learned counsel appearing on behalf of the plaintiff/respondent states that neither attestation of the mutation has been proved in accordance with law nor the defendants have pleaded and proved the ingredients of the gift i,e, "offer", "acceptance" and "delivery of possession". He further states that a valid attestation of mutation of gift was not proved by the defendants and further the event of gift, prior to mutation was necessary to be proved on the record by the defendants as they were beneficiaries of the impugned transaction. He submits that in whole of the evidence, reason for making the gift is lacking when the plaintiff/original owner/alleged donor is having seven sons and her husband has died. He further submits that admittedly it was the inherited property of the plaintiff/respondent and from the evidence it has been proved that the defendants wanted to grab the same whereas now defendant No,2 has not joined defendant No, 1/petitioner. Learned counsel also submits that even the alleged witnesses of mutation and identifier do not personally know the plaintiff/respondent. He states that the statement of patwari, who appeared as D.W.2 is very important. He has made a statement that due to one window operation, patwari and Tehsildar were busy in the same Union Council and were present in the Tehsil and that mutation was attested in the Tehsil and not in 'Jalsa-eAam' . Further that the writing of the Tehsildar in order of sanctioning of mutation ('deh') is wrong. Learned counsel has argued that all these factors are sufficient to hold that the alleged mutation was attested in clear violation of section 42 of the Land Revenue Act, 1967. Lastly argued that the findings recorded by the first appellate court are absolutely in accordance with law and there is no infirmity or illegality in the impugned order, therefore, the revision petition may be dismissed.
6. I have heard the learned counsel for the parties at full length and have also gone through the record with their able assistance.
7. One of the donees has admitted the claim of the plaintiff/ respondent. Further there is no reason for transferring the suit property through gift in favour of brother and nephew of the donor when she is widow and having seven sons. By scrutiny of evidence one can easily assess that it was an effort to grab the property of the donor, which was admittedly acquired by her through inheritance of her father. When there are glaring discrepancies as well as major flaws in the process of incorporation of the mutation and thereafter its attestation, it has been rightly observed by the learned first appellate court that all the proceedings are against the mandatory provision of section 42 of the Land Revenue Act, 1967, which are sufficient to vitiate the proceedings of the mutation. Even the statement of patwari is sufficient to hold that this mutation was attested in clear violation of mandatory provision of section 42 of the Land Revenue Act, 1967. These violations are sufficient to hold that the impugned mutation did not create any rights in favour of the defendants/petitioners. Even otherwise, as I have observed that the event of making the gift and its ingredients i,e, "offer", "acceptance" and "delivery of possession" are missing from the pleadings as well as from the evidence. Furthermore, there is no reason why a lady, who has seven sons and is a widow, transferred her property through gift in favour of her brother and nephew, which she inherited from her father. The evidence produced by defendant No,1 for proving a valid attested mutation is also not reliable and confidence-inspiring rather it goes against the defendants when D.W.3 and D.W.4 stated that they had attested the donor at the time of `rapat' of the patwari on the asking of Israil, who is one of the defendants. I have noticed that with regard to non-framing of proper issues, the findings of the learned first appellate court are not contrary to the settled principles of law, enunciated by the superior courts of the country. I am also of the view that framing or non-framing of proper issues does not make any difference as when a party leads its evidence its case is in its mind In this case the parties have also not claimed any prejudice by non- framing of proper issues and when the parties have led evidence to prove their pleadings, therefore, there was no need to frame further issue in this case and remand the same.
8. In the above circumstances, I see no illegality or infirmity in the impugned order dated 20-1-2010, passed by the learned Additional District Judge, Kasur. No case for interference while exercising jurisdiction under section 115 of the C.P.C. Has been made out. Resultantly, this civil revision has no force and the same is accordingly, dismissed.